| People v Lemery |
| 2013 NY Slip Op 04516 [107 AD3d 1593] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidLemery, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.),rendered July 11, 2012. The judgment convicted defendant, upon a jury verdict, ofcourse of sexual conduct against a child in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of course of sexual conduct against a child in the second degree (Penal Law§ 130.80 [1] [a]). Contrary to defendant's contention, County Court properlyexercised its discretion in precluding defendant from introducing expert testimony withrespect to whether defendant, as the result of chemotherapy treatments, had a diminishedmental capacity that prevented him from understanding what he was saying in tapedconversations he had with the victim that were inculpatory in nature (see People vCovington, 298 AD2d 930, 930 [2002], lv denied 99 NY2d 557 [2002]). "Asa general rule, the admissibility and limits of expert testimony lie primarily in the sounddiscretion of the trial court" (People v Lee, 96 NY2d 157, 162 [2001]; seePeople v Williams, 97 NY2d 735, 736 [2002]; People v Cronin, 60 NY2d430, 433 [1983]). Under the circumstances of this case, we conclude that evaluatingdefendant's recorded conversations with the victim was "within the ken of the typicaljuror" (Cronin, 60 NY2d at 433; see Covington, 298 AD2d at 930).Additionally, the proposed expert was unable to testify to a reasonable degree of medicalcertainty that chemotherapy treatments caused defendant's purported deficits (seegenerally People v Allweiss, 48 NY2d 40, 50 [1979]).
Contrary to defendant's further contention, we conclude that the court properlyprohibited defendant from cross-examining the victim with respect to her prior juvenileadjudication. It is "impermissible to use a youthful offender or juvenile delinquencyadjudication as an impeachment weapon, because these adjudications are not convictionsof a crime" (People v Gray, 84 NY2d 709, 712 [1995] [internal quotation marksomitted]). The extent to which a party may use the " 'illegal or immoral acts underlyingsuch adjudications' " to impeach the credibility of a witness is a matter that is generallyleft to the discretion of the court (id.; see generally People v Sandoval, 34NY2d 371, 375 [1974]). Here, the court properly exercised its discretion in precludingcross-examination with respect to the prior bad acts underlying the victim's juvenileadjudication inasmuch as they did not reflect on her credibility (cf. People v Bell,265 AD2d 813, 814 [1999], lv [*2]denied 94NY2d 916 [2000]; see generally Sandoval, 34 NY2d at 376).
Additionally, viewing the evidence in light of the elements of the crime as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Contrary to defendant's contention, the victim's testimony was not incredible asa matter of law, and we afford " 'deference to the jury's superior ability to evaluate thecredibility of the People's witnesses' " (People v Baker, 30 AD3d 1102, 1103 [2006], lv denied7 NY3d 846 [2006]). Finally, the sentence is not unduly harsh or severe; thethree-year determinate sentence of incarceration is at the lower end of the legalsentencing range and thus indicates that the sentencing court considered defendant'smitigating circumstances (Penal Law §§ 70.80 [4] [a] [iii]; 130.80).Present—Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.